New York University Law Review

ARTICLE: JUDICIAL REVIEW AND SEPARATION OF POWERS IN FRANCE AND THE UNITED STATES.

JUNE, 1982

New York University Law Review

57 N.Y.U.L. Rev. 363

Author

BURT NEUBORNE *

Excerpt

INTRODUCTION

Debate about judicial review 1 in the United States has centered on the problem of reconciling a judge's power to override executive and legislative judgments with the fundamental principle of majority rule rooted in the democratic process. Two major theories of judicial review have emerged in recent years. The currently dominant theory -- substantive judicial review 2 -- invites judges to set aside certain majoritarian decisions deemed to be inconsistent with a set of prior value choices that have been codified as positive law by the Constitution. While all partisans of substantive judicial review agree that the codified value choices derive from the will of the Framers, interpretivist 3 and noninterpretivist 4 theoreticians disagree over whether a reviewing judge must link judicial review to the actual intent of the Framers (however determined) or whether he or she is free to extrapolate from the Framers' actual (or presumed) choices to logically derivable extensions of principle.

The dilemma of proponents of substantive judicial review has been to harmonize orthodox (if simplistic) assumptions about the judicial function with the opaque manner in which the constitutional text reveals the Founders' value choices, whether real, hypothesized, or extrapolated. Critics of judicial review often seem to view the judicial function as the construction of a syllogism; an externally imposed major premise (the rule of law) is combined with an externally imposed minor premise (the facts of the case) to compel a logically preordained conclusion. In the absence of a demonstrably correct preexisting major premise and ...

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